Checker Taxi Co.

266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate and would dismiss the petition on the ground that the single-plant unit requested is inappropriate.6 Member Peterson took no part in the consideration of the above Decision and Direction of Election. 6 The Firestone Tire & Rubber Company, 103 NLRB 1749; Los Angeles Paper Box & Board Mills, Inc., 101 NLRB 1026; Bigelow-Sanford Carpet Company. Inc., 100 NLRB 1021; Basalt Rock Company, Inc., 96 NLRB 1058. CHECKER TAXI COMPANY and JOHN A BRATTIN and HOW- LAND E. BOSWORTH, et al. and LOCAL 496, INTERNA- TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, A. F. L. Cases Nos . 1-CA-1132 and 1-CA-1144. December 4, 1953 DECISION AND ORDER On June 23, 1953, Trial Examiner Thomas S. Wilson issued his Intermediate Report in these cases, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There- after, the Respondent, the Teamsters, and the General Coun- sel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report , the exceptions and briefs, and the entire record in these cases . The Respondent and the Teamsters contend , on several grounds, that the Board either lacks or should not assert jurisdiction over the present em- ployer . Without otherwise considering the merits of the cases, the Board finds that it will not effectuate the policies of the Act to assert jurisdiction here and that , for the different reasons set forth below, the complaint should be dismissed in its entirety. 1. The Respondent operates approximately one-sixth of the taxis licensed to do business in the city of Boston . It holds contracts for the use of an exclusive ramp at each of 3 rail- road stations located in that city . In addition to such ramps, 2 of the stations have public stands at which all taxicab com- panies may, and do , pick up passengers . According to the statement of the Respondent's vice president , MacOdrum, the Respondent annually makes approximately $ 384,000 in trips from the stations or their environs . MacOdrum also stated that the Respondent got its share of the trips to the stations, estimating that such trips constituted about 4 percent of its 107 NLRB No. 85. CHECKER TAXI COMPANY 267 annual revenue, or about $ 100,000. The annual gross receipts of the Respondent are estimated to be approximately $2,500,000.1 Thus the Respondent derives approximately 19.3 percent of its total revenue from carrying passengers to and from the 3 stations. On the basis of these facts, the Trial Examiner found that the Board would assert jurisdiction under the rule which the Board enunicated in the Cambridge Taxi Company case,' where it concluded that it will not effectuate the policies of the Act to assert jurisdiction over taxicab companies , except in those instances where both of the following factors are pre- sent: (1) The employer is either the sole taxicab com- pany operating in the area served by its cabs, which service instrumentalities of commerce, or is the holder of a contract, license, or franchise from some instrumen- tality of commerce, granting to the employer the privi- lege or right to serve, either exclusively or concurrently with others, a depot or terminal of such instrumentality; and (2) the employer derives a substantial portion of its total revenue directly from carrying passengers to and from terminals or depots of these instrumentalities of commerce. The Respondent and the Teamsters contend that the Trial Examiner missapplied these standards in that the present employer does not derive a substantial portion of its total revenue directly from carrying passengers to and from terminals or depots of instrumentalities of commerce. 2. While recognizing that the carrying of passengers by taxicab companies to and from railroad stations is not wholly unrelated to interstate commerce, Chairman Farmer and Board Member Rodgers believe that such relation, absent un- usual circumstances not present in this case , is too inconse- q'1 ential and remote to warrant the assertion of the Board's jurisdiction. For that reason, and since taxicab operations are essentially local in character, they would not assert juris- diction in this case.' Board Member Peterson finds merit to the contention that the Respondent does not derive a substantial portion of its total revenue from carrying passengers to and from terminals of instrumentalities of commerce. For that reason he also would not take jurisdiction in this case 'Not $250,000,000, as stated by typographic error, in the Intermediate Report. 2101 NLRB 1328 3Cf. Yellow Cab Company of California, 90 NLRB 1884, and cases cited on pp 1888-1892. 4See Yellow Cab Company, 102 NLRB 1676, and cases cited therein 2 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we shall dismiss the complaint in its entirety.5 [The Board dismissed the complaint.] Member Murdock, dissenting in part and concurring in part: I dissent from the decision of two members of the Board to dismiss this case in disregard of the Board ' s jurisdictional plan on the ground that it would not effectuate the policies of the Act to assert jurisdiction over any taxicab company. I likewise dissent from the determination of the third member that the $484,000 which the Respondent derives from carrying passengers to and from interstate terminals--representing approximately 20 percent of its revenues--is nota"substan- stantial portion of its total revenue" and thus does not meet the requirements of the present policy for the assertion of jurisdiction over taxicab companies.6 When a majority of the Board is deciding that it will not assert jurisdiction over a taxicab company which has an exclusive ramp at each of 3 railroad stations in a city the size of Boston, and which annually makes 516,000 trips hauling passengers from those stations, then it should be understood that for all practical purposes this Board has now abandoned jurisdiction over taxi- cab companies .. I cannot agree with my colleagues that an en- terprise of this character should be treated as having no sub- stantial impact upon interstate commerce and join in a dis- missal of the complaint on any such ground. I am persuaded, however, that similar considerations to those which motivated the Board to conclude that "equity and fair play require the dismissal of the complaint" in Almeida Bus, 99 NLRB 498, dictate the same conclusion and result here. The parties here have had a long bargaining history pur- suant to a certification of the Massachusetts Labor Relations Commission in 1937. At the time the most recent union-secu- rity contract, on which the Respondent's conduct involved in this case was based, was negotiated, and at all times before that, this Board was refusing to take jurisdiction of taxicab companies. The parties obviously and rightfully thought that their contract need only conform to the State law--not to the Taft-Hartley Act. Although the Board subsequently changed its policy to assert jurisdiction over taxicab companies, I be- lieve equity and fairness dictate that we do not entertain a complaint proceeding based upon that contract. Accordingly, for this reason only, I would dismiss the complaint. 5 See Cambridge Taxi Company, supra. In view of our holding herein, we find it unnecessary to consider the other "jurisdictional" grounds urged for dismissing the complaint 6Cambridge Taxi Company, 101 NLRB 1328. CHECKER TAXI COMPANY 269 Intermediate Report STATEMENT OF THE CASE This matter arises upon a complaint dated October 29, 1952,1 by the General Counsel of the National Labor Relations Board, herein called the General Counsel z and the Board, respectively, through the Regional Director for the First Region (Boston, Massachusetts), against Checker Taxi Company, herein called the Respondent, which alleged in substance that the Respondent had: (1) In various enumerated ways since on or about January 10, 1952, interfered with, restrained , and coerced its employees in violation of Section 8 (a) (1) of the Act, (2) dominated and interfered with the administration of Local 496 in various enu- merated methods and contributed support to it especially by enforcing an illegal and dis- criminatory union-security clause in the collective-bargaining agreement between itself and Local 496, (3) had discriminatorily discharged various named employees on or about January 19, 1952, because said individual had failed to comply with and abide by an illegal and dis- ,criminatory union- security clause contained in said collective- bargaining agreement with Local 496; and (4) by said discriminatory discharges and discriminatory enforcement of said illegal and discriminatory union-security clause caused its employees concertedly to cease work and go on strike and had thereafter refused to reinstate some 20 named employees , thereby violat- ing Section 8 (a) (1), (2), (3), and Section 2 (6) and (7) of the Labor Management Act, 1947, 61 Stat. 136, herein called the Act. The Respondent and Local 496 duly filed separate answers admitting certain allegations of the complaint but denying the commission of any unfair labor practices . Copies of the various charges, complaint , and notice of hearing thereon were duly served upon the Respondent and the Union. Pursuant to notice , a hearing was held from November 24 to December 18, 1952, inclu- sive, in Boston, Massachusetts, before the undersigned Trial Examiner The General Coun- sel, the Respondent , and Local 496 were represented by counsel . All parties participated in the hearing and were given full opportunity to be heard, to examine and to cross - examine witnesses , to introduce evidence bearing upon the issues , and to present oral argument and file briefs and proposed findings of fact or conclusions of law or both . The Respondent argued orally at the conclusion of the hearing and all parties filed briefs on February 19,1953. On March 23, 1953, Local 496 called attention to the case of N. L. R. B. v Rockaway News Supply Co , 345 U. S. 71 Upon the entire record in the case, and from his observation of the witnesses , the under- signed makes the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Checker Taxi Company is and has been at all times material hereto a corporation duly organized and existing by virtue of the laws of the Commonwealth of Massachusetts and has maintained its principal office and place of business in the city of Boston, county of Suffolk, Commonwealth of Massachusetts, herein called the Boston plant, and is now and continuously has been engaged at said plant in the operation of a transportation service by motor vehicle of passengers for hire. The Respondent operates and maintains 275 taxicabs and employs approximately 700 driv- ers and about 40 maintenance men. The Respondent has contracts with the Boston Terminal Company at the South Station, with the Boston and Maine Railroad at the North Station, and with the New York, New Haven and Hartford Railroad at the Back BayStation, giving it the exclusive right to use the ramps at those stations for the purpose of picking up and delivering passengers. The Respondent estimated the dollar value of the annual trips from the North Station to amount to approximately $ 162,000, from the South Station about $ 114,000, and from the Back Bay Station about $ 108,000 , from an estimated 156,000 trips from the South Station, 216,000 trips from the North Station, and about 144 trips from the BackBayStation. As the i The complaint is based upon an original charge filed on February 15, 1952 , by John A. Brattin and upon charges subsequently filed by various other individuals , all of which were subsequently amended. 2 This term specifically includes the attorney appearing for the General Counsel at the hearing. 337593 0 - 55 - 19 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD annual gross receipts of the Respondent were estimated by Respondent's officials to be about $ 250,000,000, it is clear that about 11 percent of the Respondent's revenue is derived from trips originating from one of the above-named stations. The Respondent admits that it secures ' its share" of the trips taken by passengers to the above-named stations and estimates that such trips constitute approximately 4 percent of its annual revenue In addition, officials of the Respondent estimated that it purchased approximately 100 new automobiles a year at an approximate cost of $160,000 Respondent also estimated that its annual purchases of automotive parts, materials, and supplies amounted to approximately $ 300,000 In the recent Cambridge Taxi Company case, 101 NLRB 1328, the Board concluded "that it will not effectuate the policies of the Act to assert jurisdiction over taxicab companies, except in those instances where both of the following factors are present, (1)The employer is either the sole taxicab company operating in the area served by its cabs, which service instrumentalities of commerce, or is the holder of a contract, license, or franchise from some instrumentality of commerce, granting to the employer the privilege or right to serve, either exclusively or concurrently with others, a depot or terminal of such instrumentality; and (2) the employer derives a substantial portion of its total revenue directly from carrying passengers to and from terminals or depots of these instrumentalities of commerce." In view of the aforementioned exclusive contracts with the railroads operating the 3 most important railroad depots in the city of Boston and of the estimated revenue of $384,000 derived from trips originating from such instrumentalities of commerce--without mention- ing the revenue derived from trips to such instrumentalities- -the undersigned finds that Respondent is engaged in commerce within the meaning of the Act. IL THE ORGANIZATION INVOLVED Local 496, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, affiliated with the American Federation of Labor, hereinafter referred to as Local 496, and District 50, United Mine Workers of America, hereinafter referred to as District 50, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts Sometime in 1937 the Massachusetts Labor Relations Board, as a result of an election con- ducted among the drivers of the Respondent by that organization, certified Local 496 as the bargaining representative of the Respondent's drivers. Ever since that certification the Respondent has at all times had contractual relations with Local 496. The last 2 contracts from 1946 to 1950 and the 3-year renewal thereof negotiated in November 1950 between the Respondent and Local 496 have contained the following identical union-security provision: The employer shall employ only members in good standing of the Taxicab, Bus, Funeral Directors and Chauffeurs Local 496, or those becoming members of Local 496 within thirty (30) days of the employment. By May 1950 the affairs of Local 496 were in such shape as to cause its attorney at the present hearing to remark, in a classic example of understatement, that the Local was "not proud" of certain events in its past history. Among other things funds of the Local had been embezzled and the officers had refused to hold meetings, to obey orders of the membership, or to prosecute the officer responsible for the defalcation At the May 1950 meeting of the Union, which held the bargaining rights in 5 or 6 of the largest taxi com- panies in Boston and vicinity, the membership passed a resolution establishing a com- mittee, composed among others of John A. Brattin, Howland E Bosworth, and one Claugh- erty 3 for the purpose of carrying out the mandates of the body in the event that the officers continued their failure to do so. Soometime thereafter William F. Burke replaced Claugherty on the committee which has remained in existence continuously from its inception to the present time. Representatives from all taxi companies in Boston were on this committee. CHECKER TAXI COMPANY 27 1 Despite pressures brought to bear from a variety of sources, this committee, acting under the authority of the above-noted resolution, successfully brought the then treasurer of Local 496 to trial for embezzlement of union funds for which he was found guilty by a jury and sentenced to a term in the penitentiary. In addition the committee has sought by legal action to invalidate the 1950 contract abovenoted for the reason among others that the officers of Local 496 failed to submit that agreement to the membership for ratification as ordered by the membership. Ultimately--and subsequently to the events material here--John V. Jenkins, president of Local 496 during his period, lost his office and the Local was placed in trustee- ship by the International Union. In short, throughout the period here under consideration, there has been serious mtraunion dissension over the conditions existing in Local 496 and this committee played a leading role in attempting to "clean up the mess." Litigation became rife. Among numerous other resulting lawsuits, the committee brought suit in a State court to invalidate the 1950 contract between Local 496 and the Respondent. Thus far this attempt has been unsuccessful. In fact there has been so much litigation for and against this committee that even the attorneys involved are unsure as to the status of the various causes and even the results of those litigated. Actually this litigation is not material here other than to indicate the seriousness of the intraunion dissension At a meeting of Local 496 held on December 16, 1951, a resolution was duly offered whereby the membership of Local 496 "disaffiliated" from said Local and "affiliated" with District 50, UMW John V. Jenkins, presiding as president, declared the motion out of order. The ruling was appealed to the floor where Jenkins' decision was reversed and the resolu- tion offered was thereafter passed by a large, but not unanimous, vote. Thereupon Jenkins walked out of the meeting and his place was taken by the vice president William R. Dugan, district representative of District 50, was invited to and did thereafter address the meeting Authorization cards for District 50 were then passed out among the members for signature and many were executed by the drivers present. On December 27, 1951, Dugan, acting as representative for District 50, addressed a letter to the Respondent claiming that his organization represented a majority of Respondent's employees and requesting recognition and bargaining from the Respondent No answer was ever made to this letter. By letter dated January 10, 1952, over the signature of John V. Jenkins, Local 496 informed its members that their dues must be paid in full by January 19 or else Local 496 would se- cure their discharge under the union-security clause of the 1950 contract. This letter was mailed to each of the members of the Local and a copy thereof was posted on the Respondent's bulletin board.4 This letter read as follows: January 10, 1952 TO ALL MEMBERS: Your attention is called to Article V. Sec . 5 of the Local Constitution which provides: "Any member becoming three months in arrears for dues, fines, etc. shall stand suspended , and will not be allowed to work in any shop under our jurisdiction un- til he pays up to date in full." Your attention is also called to Section I (A) of the contract between Local #496 and your Company: "The Employer shall employ only members in good standing of the Taxi Cab, Bus, Funeral Drivers & Chauffeurs Local#496, or those becoming members of Local # 496 within thirty (30) days of the date of employment." 4 This testimony was strenuously disputed by the Respondent whose witnesses, without exception, testified that it never permitted union notices to be posted upon its bulletin boards, especially in certain glass-enclosed bulletin boards which were locked with a key under the control of the garage superintendent. However, even the Respondent's witnesses admitted that on occasion union notices had been found tacked to certain open bulletin boards of the Respondent They also testified that such notices were promptly removed upon dis- covery. Although not of overwhelming importance here, the undersigned believes, contrary to the testimony of the Respondent, that the testimony proves that the aforementioned letter was posted in the locked glass-enclosed bulletin boards of the Respondent. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Failure to pay dues will mean loss of your job and all insurance benefits. Any per- son who has not paid up his dues by Saturday, January 19th, will be suspended in ac- cordance with the Constitution, and notice will be sent to your Employer. Any member who joins or participates in meetings or activities contrary to the best interests of Local # 496 is subject to being brought up on charges in accordance with the Constitution. The Superior Court, (Judge Murray) has upheld our contract with the Cab Companies as valid and binding. All drivers must be members in good standing of Local #496 in order to keep their jobs and benefits! Fraternally yours, Is/ John V. Jenkins, JOHN V. JENKINS, President & Bus. Agent. On January 13, 1952, a meeting of the drivers was held at the Bradford Hotel in Boston under the auspices of the committee acting as an "Organizing Committee for District 50." At either this or the previous meeting, Brattm, Bosworth, and Burke were appointed to official positions upon the District 50 organizing committee by Dugan. At this meeting more District 50 authorization cards were executed. In addition the meeting authorized the committee to call a strike if in its view that step was necessary in order to prevent the collection of dues by Local 496 as threatened in their letter of January 10. By this time some 887 taxi drivers out of the approximately 1,000 regular drivers employed by the 5 major taxicab companies in Boston under contract with Local 496 had executed District 50 authorization cards. On the afternoons of January 16, 17, and 18, 1952, the committee of Brattin, Bosworth, and Burke attempted to confer with Frank Sawyer, president of the Respondent, about Local 496's threat to collect dues or cause the discharge of the unpaid drivers but, being unsuccessful in that endeavor, did confer on each of these afternoons with Howard MacOdrum, Sawyer's executive vice president. These three conferences were practically identical with the com- mittee attempting to prevail upon the Respondent to remain "neutral" in this mtraunion quarrel, i.e., to agree not to force its employees to pay dues to Local 496 on pain of dis- charging drivers who failed to pay under the terms of the union-security clause of the 1950 contract. 5 These conferences brought forth no written statement from the Respondent but the committee was satisfied from MacOdrum's "neutrality assertion" to them that the Re- spondent would make no attempt to force the drivers to pay the dues nor discharge any driver for failure to do so. On the other hand MacOdrum, while admitting that he reasserted the Respondent's neutrality stand, denies having made any promises that it would not enforce the contract as predicted in Local 496's announcement of January 10. In view of MacOdrum's admission regarding his "reassertion" of the Respondent's neutrality position, the undersigned finds that the committee was led to the reasonable conclusion that the Respondent had agreed to remain "neutral," i.e., not to force the drivers to pay dues to 496 and not to discharge those who refused to pay. 5 The evidence is very clear that this security clause had never before been strictly enforced and that no one had actually been discharged by the Respondent for their failure to pay dues. It was also clear that the requirement that drivers should either be members of Local 496 or become such within 30 days was honored more in the breach than in the enforcement since May 1951 The evidence is just as clear that on occasion Thomas Healey, Respondent's traffic manager, would call delinquent drivers, listed for him by the Union, into his office, remind them of their arrearage in dues to the Union and take "volunteer" checkoff cards from them to cover the arrearage, which cards would be honored by the Respondent's payroll department so that the money would be subtracted from the weekly paycheck of the driver and paid to Local 496. The Respondent insisted, however, that for the 8 months prior to January 1952 the Respondent was never requested to and did not bring this pressure to bear upon its delinquent drivers. However, in May 1951 officials of Local 496 conducted a dues checkup upon all the Respondent's drivers on the Respondent's premises by refusing to permit any driver whose dues were not then paid up in full to take his cab out that day until he had either paid his dues in full or had arranged a checkoff agreement with the Respondent whereby his unpaid dues would be checked off from his weekly pay. CHECKER TAXI COMPANY 273 However, within a very few minutes after the conclusion of the meeting on January 18 between the committee and MacOdrum on this matter, the Respondent posted upon its bulletin boards a long notice explaining that the Respondent was bound by a legal contract to Local 496 and containing the following: The Company is a party to a contract [with Local 4961. It must abide by that contract as it is written. Although this announcement had been in preparation for a week or 10 days prior to its posting, the Respondent failed to show it to the committee prior to its posting . Nor did MacOdrum mention it at any of these conferences. Sometime on the afternoon of January 18, Frank Sawyer telephoned Boston police , informed them that he was expecting labor trouble at the plant , and asked them to have available a police detachment to maintain order and to protect property . In answer to this request, Captain Russell of the Boston police ordered a four - man plainsclothes detachment to the Re- spondent's plant on the afternoon of January 18. He also ordered a much larger detachment of uniformed police to be available at his station on January 19 in order to be prepared for for any emergency. Frank Sawyer explained this request of the police on the ground that he had heard " rumors" of an intention to strike on January 19. Although this explanation omitted any mention of the Respondent's forthcoming announcement of January 18, it is also clear that he knew that the company announcement was to be posted that afternoon and it is obvious from his actions that he recognized what the reaction of the drivers would be thereto. The posting of this announcement naturally caused great excitement among the drivers. The committee met on the morning of January 19 in the offices of District 50 to decide what action, if any , should be taken regarding the threat of Local 496 to collect dues or cause the discharge of those refusing to pay and the notice of the Company that it would enforce the security clause of the contract withLoca1496 . Telephone calls and telegrams to Frank Sawyer at his office and at his home remained unanswered although Sawyer testified that he was at his home during the time. At noon the committee decided to call a strike in protest against the payment of dues and the enforcement of the union -security clause of the contract. The strike began about 3:30 or4p.m., justprior to the time that the night shift was scheduled to go on the road. Captain Russell ofthe Boston police had been on the Respondent 's premises an hour or so before the strike began and promptly ordered the squad of from 30 to 50 policemen, who were assembled and awaiting his orders at this police station , dispatched to the garage. The strike was effective and few, if any, cabs of the night shift "rolled " although a very few cabs remained on the streets . Only 25 drivers manned cabs that night, about one-tenth of the regular night shift, and those rolled only after Frank Sawyer had made the most extrava- gant promises and inducements to any drivers who would take their cabs out with or without police protection. In fact, in order to secure any drivers, Sawyer promised those drivers who would take cabs out 100 percent of their evening "take ," i.e., total revenue , instead of the usual 45 percent. The evening of January 19 was one of utmost excitement and numerous meetings around the garage. Soon after the strike began all the drivers gathered in the drivers' room at the Respondent's garage. This is a large room variously estimated from 80 by 40 feet to 40 by 20 feet with a large table located in the center of the room. This evening the room was jammed with drivers, some two or three hundred of them packedin about as closely as humanly possible . Treasurer Smedile of Local 496 opened the meeting from on top of the center table by making a speech in which he urged the drivers to return to work. When it was obvious that Smedile 's efforts were unsuccessful, Frank Sawyer climbed upon the table and, dismissing Smedile with the words "You're doing me no good ," began to harangue the drivers in an effort to get them to return to work. It was a loud , raucous gathering creating a "din" of noise and confusion . Although Frank Sawyer retained the center of thestagefor 2 hours or more, during the course of which he promised those drivers who took cabs out that night 100 percent of their gross receipts, his success was less than phenomenal for only 25 regular drivers took out their cabs that evening. Frank Sawyer himself testified that time and time again just as he would have the drivers ready to return to work, Brattin , Bosworth, Burke, or Garshick would speak up about some one of the gripes which the men had and, in Sawyer's own words, "the men would flop back. " Sawyer had invited the drivers to air their grievances . During the course of the speech 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burke and Sawyer got into an argument over the Respondent 's policy regarding uniforms. 6 Frank Sawyer testified, and was confirmed in his testimony by other witnesses of the Respond- ent, that Burke called Sawyer a "goddambar " during the course of their discussion. A driver named Garshick objected during the course of the meeting to the fact that the Respondent's group accident policy for the drivers in the face amount of $ 1,000 was cancellable without notice to the individual driver. Although Sawyer claimed that all similar group accident policies contained this same objectionable clause as part of the standard insurance form, he agreed to look into the objection and to see what could be done . 7 He also stated orally that he personally would guarantee the $1,000 face value of the policy . Garshick demanded that Sawyer "put it in writing" which Sawyer refused to do saying that his word was his bond. Garshick's answer was hardly in language heard in high society whereupon Sawyer preemptorily ordered Garshick to be quiet in hardly more polite language . At other parts of the meeting Brattin and Bosworth likewise expressed their disbelief in certain statements made by Frank Sawyer regarding gripes raised by them. Brattm angered Frank Sawyer to such an extent that at one point Frank Sawyer threatened to knock Brattin 's teeth "down his throat." 6 As perhaps was to be expected , many of these comments and answers were in vigorous , if hardly polite, phraseology. Among other questions raised by the drivers at this time was whether or not the Respondent was going to force its drivers to pay dues to Local 496 in order to hold their jobs with the Respondent. Sawyer answered that the Respondent was legally bound by a legal contract to Local 496. 'Ihe testimony also developed than on occasions during the meeting Sawyer would make a positive concrete statement , the drivers frequently shouted for him "to put it in writing" but Sawyer refused to put anything in writing maintaining that his word was his bond. When it became apparent that Sawyer was not going to be able to break the strike, he agreed to a request made by the committee that he sit down and talk with Roy Dugan of District 50. When Dugan arrived in response to a telephone call, he and Frank Sawyer went into confer- ence behind closed doors . This was a rather stormy session with Sawyer repeatedly telling Dugan that "the sin is on your soul " and with Dugan demanding recognition of District 50 and bragging that District 50 was going to takeover the taxi business in Boston. It is not surprising with two men talking so faroffthesubject that the hour -long conference ended without tangible results. As this conference ended 4 automobiles containing about 20 Teamsters ' union officials and attorneys drove into the Respondent 's garage. As President John V. Jenkins alighted from his car a striker yelled "there goes the [so and so]" and made a dash towards him. If the striker intended to assault Jenkins , he was stopped short of his purpose. The passengers from these cars immediately went in to confer with Frank Sawyer , again behind closed doors. At this conference Attorney Roitman of the Teamsters informed Sawyer that Local 496 had a legal contract with the Respondent and expected the Respondent to live up to it. Sawyer coun- tered by pointing to the "no-strike clause" contained in the contract and demanding that Local 496 supply him with drivers in order that he could get his cabs rolling . Local 496 6Although the Respondent's rule book required the drivers to be in "standard uniform," it was quite generally agreed that dark clothing satisfied that requirement However the Respondent maintained a stock of dark uniforms for sale to its drivers , a concession which sold uniform articles "at cost," according to Garage Superintendent Trundy , who had charge both of the clothing concessions and of determining if the drivers were sufficiently present- able to be allowed in public . Not unexpectedly many of the drivers purchased their clothing at the concession. 7The succeeding policy the Respondent secured for its drivers had a different cancellation clause which-removed Garshick's objection. 6During this testimony Frank Sawyer readily admitted having made a threat to knock Brattin down. However, his admission on the point made the unanimity with which his under- lings had previously denied having heard him make any such threat even more remarkable. At this point the undersigned would like to compliment Frank Sawyer on having been a remarkably truthful witness in the opinion of the undersigned as there are only a very few places where his testimony can be questior.ad. Unfortunately the undersigned cannot make this same observation regarding the testimony given by some of his underlings While commenting upon credibility, the undersigned must also compliment Brattin. Bosworth, and Burke upon their honesty although Burke almost eliminated himself from this category by becoming evasive on cross -examination. There were few real conflicts among these four men. CHECKER TAXI COMPANY 275 promptly disclaimed any and all responsibility for the strike and acknowledged its inability to supply Respondent with the drivers necessary tb operate his fleet of cabs. After some idle threats of suits and countersuits by each of the conferees, this conference also broke up without tangible results and the Teamsters' officials departed. Upon the departure of the Teamsters, Frank Sawyer began another meeting, this time with Dugan and the committee of Brattin, Bosworth, and Burke At this time Frank Sawyer again reiterated that the Respondent would remain neutral between the two factors, that the Re- spondent wanted all its drivers to return to work, and that the Respondent would not oppose an election conducted by the Massachusetts State Labor Relations Board to determine which union actually represented the Respondent's drivers. When the committee requested Frank Sawyer to put all this in writing , he again refused reiterating that his word was his bond. Much of the time spent in this conference was spent in trying to force Sawyer to put the afore- mentioned three points into writing which Sawyer refused to do, reiterating that he was "making no deals." 9 At this point Dugan and the committee conferred privately for a few minutes to determine whether to accept Sawyer's word or not. Upon Dugan's insistence, the committee agreed to do so. They then returned to the conference and stated that they would recommend to the drivers that the strike be ended upon the aforementioned three terms: There were to be no recriminations against the strikers , Respondent was not to force the payment of dues to Local 496, and the Respondent would not oppose an election by the Massachusetts State Labor Relations Board. The conferees thereupon went into the drivers' room with Sawyer and MacOdrum standing in the doorway to the drivers' room Dugan then informed the men that he and the committee recommended that the strike end as the Respondent had agreed to return all the drivers to work, to remain neutral and not to oppose an election to be held by the Massachusetts State Labor Relations Board. As Dugan completed this statement, Frank Sawyer listening from the doorway raised his hand as though to object to Dugan's statement . Seeing this , Dugan turned to him with a remark to the effect that if this was not his agreement, the strike would go on Frank Sawyer then said: "Oh! - never mind " The men then voted unanimously to return to work and the strike ended about 2 a. m on February 20, 1952. w In reliance upon this three- point program, the drivers all returned to work on January 20 and 21 as usual Brattin, Garshick , and Burke drove their usual shifts during that period. For some reason not explained in the record the Respondent continued to maintain a police guard in and around the garage at this time On January 21, as per agreement with the Respondent , Roy Dugan filed a petition for cer- tification of the drivers in the Respondent's employ with the Massachusetts Labor Relations Commission That same day Dugan telephoned the owners of two other taxi companies of Boston and inquired if they would recognize UMW as the representative of their drivers Upon receiving a negative answer in each case , Dugan answered that that was "all" he wanted to know. a Although Frank Sawyer's testimony stressed his own reiteration of the fact that he was making "no deals," he nevertheless candidly admitted having expressed the desire to have "all the drivers" return to work, that the Respondent would remain "neutral," and that the Respondent would not oppose an election Despite Sawyer's "no deal" statements, it is obvious that he was in fact agreeing to the aforementioned three points which the committee had been demanding all evening. it Sawyer's version differs only in degree from the above. Although denying that he was in the drivers' room or heard Dugan's statement, Sawyer testified that Dugan immediately reported having made this statement to the men as well as their action thereon, that he, Frank Sawyer, promptly told Dugan that he had "misrepresented" the Respondent's position as he had stated many times that there were "no deals." However, when asked what he or the Respondent had done to clear up this claimed "misrepresentation," Frank Sawyer readily admitted that the Respondent had done "nothing" about it His reason for this failure to clarify the alleged misrepresentation was that the men had returned to work so that there was no need for any such clarification. Legally the undersigned believes that under either version of the facts, the Respondent had made an agreement with the committee However, this is one of the instances where the undersigned was unable to credit Frank Sawyer's testimony in full and believes that Sawyer was in the doorway and hear Dugan's statement to the men without objection. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to the testimony of Frank Sawyer, having thought the matter over during the weekend and having become convinced -that Brattin, Bosworth, Burke, and Garshick had "insulted and humiliated " him during the drivers ' meeting in the drivers ' room on January 19, Frank Sawyer came to the office on January 22 and gave orders to discharge the above- named drivers . As usual Sawyer' s subordinate officials concurred in this decision. When Brattin and Burke reported for work on the afternoon shift of January 21 as usual, they received orders from the dispatcher to report to Frank Sawyer Upon reporting as ordered they were discharged by Frank Sawyer in person and in the presence of Captain Russell of the Boston police on the grounds that they had "insulted and humiliated " Sawyer. Sawyer' s parting word to them was to "get off the premises " The two men left the premises together without reporting their discharge to any of their fellow employees . They repaired to the headquarters of UMW to consider their future actions. Acting upon orders of Sawyer , MacOdrum sat up all night so as to be able to discharge Garshick when he reported for the early shift on January 22. Bosworth was also discharged by MacOdrum when he reported for work on the afternoon of January 24 having not reported after the first strike due to illness which he reported to Respondent On the morning of January 22 the full committee , composed of committeemen from each of the 5 taxi companies under contract with Local 496, met in the UMW's office to receive the reports of the discharges and to determine upon a course of action . Fearing that the other taxi companies would adopt similar retaliatory action against the committee member drivers, the committee voted to strike all 5 companies . Brattin, Bosworth , and Burke expressed some disapproval of this move contending that the strike should be limited to the Respondent. The strike began late in the afternoon of January 22 after the afternoon shifts had reported and were on the streets with their cabs The drivers were notified of the strike in person or by sound truck. Employee Ralph Powers was one of the drivers who roamed about the city notifying the Checker drivers of the strike and urging them to return to the garage Some of these notifications verged upon the coercive As the Checker drivers returned to their garage that evening, they were met by Respondent officials who informed the drivers that , if they put up their cabs that evening , the Respondent would consider that the men had quit their jobs The drivers were so informed not once but by every official they passed. Respondent made sure that no driver returning his cab to the garage was left uninformed on this matter So many drivers returned that the streets around the garage were soon clogged with cabs parked and left by the returning drivers because the Respondent had locked the entrances to the garage in order to prevent the return of the cabs. Soon after the picket line was set up in front of the garage , Solomon, a picket , was set upon by 2 thugs well known to the Boston Police Department and severely injured. The police arrested all 3 persons involved . At the tr ial all 3 were convicted with the 2 thugs plead- ing guilty and with the picket, Solomon, securing a reversal of his conviction upon appeal Solomon was hospitalized. This strike continued until January 24 when the strike was called off upon the advice of a UMW official from Washington , D. C., who feared that its continuance would lead to bloodshed When the strikers returned to work on their regular shifts on January 24, 1952, a large number of them were notified by the Respondent' s dispatcher to report to MacOdrum. In accordance with instructions the drivers lined up in front of MacOdrum's office and were interviewed by him one, by one All the interviews were almost exactly similar . MacOdrum had a list of the drivers in front of him with the time they had been off work during the period from January 15 to January 24 To a number of men who had been out on strike during both strikes MacOdrum gave a white slip which indicated that the recipient was discharged. In some cases the word "dismissal " on the white slip was circled In others that word was not circled--but the result was the same, the man was discharged . ii The men so discharged, listed in Appendix A attached hereto, have never been reinstated by the Respondent. iiMacOdrum and others for the Respondent testified to quite dissimilar state of facts They testified that MacOdrum with a list of drivers or a payroll in front of him asked each man "what are you going to do' " and that as each answered as to whether he wanted to return to work or not, he was given a white slip if he did not desire reinstatement or a yellow slip if he did desire reinstatement . In view of the fact that , even excepting Respondent's version of these interviews, their testimony indicated that only 4 drivers allegedly insisted that they preferred to go "chicken plucking ," "retire from the cab business," or something else instead of being reinstated while over 20 drivers were not reinstated, the undersigned is unable to credit this testimony of the Respondent . Furthermore MacOdrum acknowledged CHECKER TAXI COMPANY B. Conclusions 1. The contract 277 Basically this case originates in an intraunion quarrel wherein one faction of the Union, probably a very strong majority of the membership, attempted to clean up an internal union mess caused by the deprecations of some of its officials , a portion of the history of Local 496 which the present officers admit they are "not proud " Originally the Respondent was no part of the cause of the quarrel although subsequently the question of wages did enter the picture as the dissident majority group objected to certain wage provisions of the contract entered into between the Respondent and Local 496 in 1950. Finally, however, when the recalcitrant officers of Local 496, none of whom now retain office in the Union, forced a showdown with the dissident group through their notice of January 10, 1952, which required that "all mem- bers" be paid up in full by January 19, and that " all drivers " be members in good standing of Local 496, upon pain of dismissal from employment, the Respondent entered the fray on the side of the then officials of 496 on the ground that its contract with 496 was a legal and binding contract requiring it to so do. Thus, at the, very outset of this case, the 1950 contract between Local 496 and the Respond- ent becomes a pivotal issue That contract contained the following union - security clause. "The employer shall employ only members in good standing of the Taxicab, Funeral Drivers & Chauffeurs Local 496, or those becoming members of Local #496 within thirty (30) days of the date of employment " The General Counsel vigorously maintained that this contract was illegal under the pro- visions of the Act as allowing at most only 29 days instead of 30 days for new nonmember employees to become members of the Union and because it failed to give those already em- ployed members any escape period . From thebriefs it appears that all parties quite generally conceded that the clause as written might well be illegal. Both 496 and the Respondent argued at some length that the fact finders should take into serious consideration in determining the legality of the contract the fact that at the time the contract was executed it was generally understood that the parties were under State law--admittedly the security clause was legal under the Massachusetts Labor Relations Act--and not within the jurisdiction of the National Labor Relations Act as, at that time , the Board was refusing to assume jurisidiction over taxicab companies for policy reasons Thus , they argued that the legality of the clause should be determined by Massachusetts law and not by the Federal law. This argument is not very persuasive especially when one considers that the Board began to take jurisidiction over taxi companies within a matter of only a month or two after the execution of the contract here but the parties never bothered thereafter to conform any possible illegality in the terms of the contract to the Federal Act. Time, however , has played tricks upon the General Counsel' s contention. If this case had been heard earlier , it seems from the decided cases that the Board would have held this security clause illegal on both counts- above suggestion but from the more recent deci- sions,t it is apparent that the thinking on this problem has changed so radically that today the undersigned is constrained to hold that the security clause as written is fair upon its face and legal under the terms of the Act. But on the theory that these clauses are ambiguous especially here where the first half of the clause creates a closed shop , the Board has held that it is fair to look at the practice followed thereunder in order to determine the legality of such a clause is It is proper to look at the enforcement of such a clause in order to determine that it was enforced in accordance with terms of the Act. So in the present case we find that until May 15, 1951, Local 496 regularly furnished the Respondent with lists of those employee -members who were in arrears in the payment of their dues and that the Respondent thereupon caused the delinquent member to pay or to arrange to pay by means of a checkoff system. Furthermore , the Respondent also made it that he completed these 20- odd interviews in some 15 minutes so that it is obvious that not much time was spent talking during these interviews . This conforms the testimony of numer- ous of the dischargees that no words were exchanged , that, after giving their names, Mac- Odrum checked his list and handed the man his white slip. 12 Krause Milling Co., 97 NLRB 536; N. L. R. B. v. United Electrical, Radio & Machine Workers of America, Local 623 (U. E.), 203 F. 2d 673 (C. A. 3). is Kaiser Aluminum and Chemical Corp, 98 NLRB 116. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its business to see that its new drivers joined 496 in order to retain their employment. How- ever, the evidence showed that neither the Respondent nor 496 was anything but lax in re- gard to the 30-day grace period provided for in the contract. On or about May 15, 1951, Teamsters and496 officials working at the Respondent's dispatcher's cage, apparently with the Respondent's full knowledge and consent, made what was referred to as a "book check," i.e., drivers were not permitted to take their cabs out until they had shown either a fully paid up union book or had made checkoff arrangements with the Respondent to pay any de- linquency. The evidence does not disclose what, if any, attention was paid at that time to the 30-day period as to either the drivers' date of employment or of his membership. Following this book check of May 15, 1951, the evidence is clear that, thereafter until January 10, 1952, neither the Respondent nor 496 paid much, if any, attention to the security clause This was probably due to the fact that the legality of the contract was in question in the courts of Massachusetts Drivers were permitted to work for periods of months be- fore the Respondent called their attention to the fact that they had to be members of 496 as a condition of continued employment Local 496 failed to submit statements of delin- quencies of the various drivers although, on occasions, the Respondent would remind some driver of his delinquency For this period it is fair to say that the enforcement of the se- curity clause was extremely lax, if not altogether lacking. The notice to members dated January 10, 1952, by 496, however, completely reversed this picture This notice, i4 although addressed to "all members" is from its own careful differentiation between "members," "any person," and "all drivers" intended to refer to all of the Respondent's employees, members, nonmembers, and new employees As the notice gave a period of only 9 days' grace instead of the statutory 30 days required by the Act, it called for clearly illegal enforcement as to those nonmember drivers who had entered the Respondent's employ within the 30-day period prior to January 19, 1952 Local 496's insistence upon "membership in good standing" fails to comply with the provisos of Section 8 (a) (3) which restrict the employer's right to discharge an employee strictly to his failure to pay or tender the periodic dues to the union. If an employer "has reason to believe" that the discharge of an employee has been requested by a union for and cause than that failure, then the employer has no right to discharge as requested. The notice, however, clearly points out that "dual unionism" (such as this dissident group had resorted to the admitted knowledge of Respondent) is also a cause for loss of "membership in good standing" and so a cause for discharge This is definitely contrary to the Act.i5 So unless the provisos of Section 8 (a) (3) of the Act are read into the security clause here in question as the court has recently indicated they must be,16 the requirement of "membership in good standing" would make the clause illegal under the Act. Hence, if the enforcement of the security clause was in conformity with the interpretation in the January 10 notice to members, the enforcement was to be contrary to the Act and illegal It is to be recalled that Brattin, Solomon, Hefler, Newell, Kellems, and Burke, among others involved here, were fully paid-up members of 496 during this period. It is also interesting to note that despite this, 496 had, according to Frank Sawyer, previously importuned Respondent vainly on many occasions to discharge Brattin and Burke. However, Respondent's notice of January 18 would indicate its acquiescence at least in the threat to discharge fully paid-up employees for "dual unionism." Thus it appears that as of January 18 Respondent and 496 intended to enforce the contract in an illegal manner as to both new drivers whose employment began within the 30-day period prior to January 19 and as to paid-up members of Local 496 who had been active in the meetings of the dissident group. By its posted notice of January 18, 1952, the Respondent acquiesced in this illegal inter- pretation of the security clause by 496. This acquiescence is made even clearer than the posted notice itself when we consider the refusal of MacOdrum for the Respondent to give and keep a promise to the committee that the Respondent would not require the payments of dues as demanded by the notice of 496 If we admit that there is much "double talk" in the Respondent's notice and subject for that reason to differing interpretations of what the Respondent actually meant, still the interpretation placed thereon by the committee and the dissident group to the effect that Respondent intended to enforce the contract illegally in '4See supra >s Westinghouse Electric Corporation, 96 NLRB 522. Is N. L. R. B. v. United Electrical, Radio & Machine Workers of America, Local 622 (U. E ), supra. CHECKER TAXI COMPANY 279 accordance with the January 10 notice was a perfectly logically and reasonable interpreta- tion of the posted notice. For the reason stated above, the undersigned must find that the interpretation of the phraseology of the union-security clause here in issue as set forth in the notice to members of Local 496 and as acquiesced in by the Respondent was contrary to the requirements of the Act, and therefore illegal. It follows therefrom, both logically and from the decided cases of both the Board and court, that by acquiescing in the attempted illegal enforcement of the union-security clause, the Respondent assisted Local 496 in contravention of Section 8 (a) (2) of the Act It also logically follows that the strike which was precipitated by the Respondent's ac- quiescence in the illegal interpretation of the union-security clause was a protected con- certed activity to prevent the commission of an unfair labor practice and thus was an unfair labor practice strike entitling those participating therein to reinstatement upon application. 2. The discharges of the committee and Garshick As found above, the Respondent's notice of January 18, acquiescing in the illegal interpre- tation and enforcement of the Union's security clause of the 1950 contract caused the com- mittee to call the strike of January 19 which the employees almost universally joined despite powerful monetary and other inducements offered by Frank Sawyer in attempting to break the strike on the evening of January 19 during his talk to the employees from the table in the drivers' room These inducements were far from successful as seen from the fact that no more than 25 drivers on the evening shift took out their cabs that evening. According to the Respondent's own witnesses, every time Frank Sawyer would succeed in getting the drivers to the verge of abandoning the strike, one of the committee or Garshick would bring up another of the grievances of the drivers with the result that the drivers would again hold firm to their resolve to maintain their strike. Although this was no doubt a frustrating ex- perience for Frank Sawyer, he had nevertheless invited the men to tell him their grievances. Thus if Sawyer was frustrated by his failure to break the strike, he had no one but himself to blame for that failure. During his testimony Sawyer reiterated innumerable times his frustration and bewilderment over the turn of events whereby his own employees so clearly showed their preference for the leadership of their own committee to his own. No em- ployer would enjoy this nor would one like having his own employees insist that he "put in writing" his own verbally suggested corrections of the grievances presented. Nor does anyone relish having his word questioned as was done in the give and take of that evening's meeting. In addition, Respondent's witnesses, testified and in each case was contradicted by the testimony of the member of the committee involved or by Garshick, that the committee or Garshick applied certain uncomplimentary epithets to Frank Sawyer. The language mentioned was not polite, pretty, or complimentary indicating as it did the employees' distrust of Sawyer. It was also on occasion no doubt both vulgar and profane. On the other hand, despite all these objectionable features, while it may not have been the usual language of the garage, it was obvious from the testimony of the Respondent's witnesses that it was not the first time such language had been heard there.i7 Although MacOdrum testified that he noted how "careful" Frank Sawyer had been in his choice of language during the meeting and Sawyer himself testified that he had "foresworn swearing" years ago, a statement belied once during Sawyer's appearance on the stand, there was testimony, also denied, that during the meeting Sawyer had once threatened to knock Brattm down--or some like phrase--so that it seems obvious from the testimony, as well as from the probabilities, that the faulty language did not lie exclusively on one side While the use of this blunt and emphatic language was de- nied in each instance and on both sides, the undersigned finds it hard to believe that, in the tense situation then existing, such phrases were not bandied about. In fact, the undersigned is somewhat surprised at the relative moderation of the language in view of the situation there existing. It is a well- recognized fact that bargaining meetings and strike situations IT Lest anyone get the wrong idea as to the language and epithets testified to from the under- signed's failure to set.them out in full, let it be said that the words allegedly used are not unknown or unused in more polite or, perhaps, more social circles than the garage. In fact, they are emphatic words but, because of their quite general use today, especially in male circles, would not qualify as "fighting words." 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD similar to the one under consideration here appear to be conducive to much more immod- erate phraseology than the testimony in this case would indicate occurred on January 19. Is As found heretofore, the strike of January 19 ended early on the morning of January 20 with the assurance, among others, that all strikers were to return to work without discrim- ination. Even at the hearing Frank Sawyer acknowledgethat he intended that all the strikers-- in this case this was almost synonymous with "all the employees"--return to work. However, according to Frank Sawyer, in thinking the matter over the weekend, he became convinced that he had been "humiliated and insulted" by the language used by Brattin, Bosworth, Burke, and Garshick during their interruptions of his speech at the January 19 meeting and, there- fore, determined to discharge them for that reason. However, there is one significant piece of evidence which not only fails to corroborate Frank Sawyer's theory but, indeed, rather completely demolishes it. That piece of evidence is a fact that the Respondent retained a police guard around its garage even after the end of the strike of January 19 as though in anticipation of a further and separate strike. Just as Sawyer had anticipated that the strike of January 19 would grow out of the posting of the Respondent's notice of the day before and had arranged for police protection to be available in anticipation of the strike of the 19th, just so he apparently foresaw a second strike arising out of the anticipated discharge of the leaders Qf the employees, the committee and Garshick. Moreover, when the second strike ended on January 24, so did the police protection. So it is clear that the Respondent anticipated a continuation or a second strike to begin soon after the conclusion of the original strike This anticipation must have come from the anticipation of some action on its part which would cause another strike. No surer cause can be imagined than the discharge of the committee, the acknowledged long time leaders of the employees at the Respondent's garage These alleged "insults and humiliations" apparently had so upset Sawyer that Executive Vice-President MacOdrum stayed up all Monday night so as to be sure to discharge Garshick when he reported for work at 5 30 or 6 a. m. on Tuesday, his first regularly scheduled time to work following the strike When Garshick arrived at MacOdrum's office as ordered on Tuesday morning, MacOdrum told him that he was fired for "insubordination and inciting a riot." Of course, as Garshick pointed out, there had been no riot. MacOdrum then ended the conversation by pointing out that anyhow Garshick had not aided the Respondent's cause. The "insubordination" mentioned by MacOdrum could only have been the fact that Garshick had brought up the drivers' grievance that the insurance which Respondent carried on its drivers could be canceled by the insurance company and the Respondent without the consent of the driver This grievance was both invited and accurate--being subsequently corrected when the Respondent took out its next policy When Sawyer stated in answer to Garshick's grievance at the meeting of January 19, that he would look into the grievance and, in the meantime, would personally guarantee the policies, Garshick, as happened many other tunes during the course of that meeting, demanded that Sawyer "put it in writing " Again, as was also fre- quently the case during that evening, Sawyer refused to put it in writing, stating that his word was his bond Until the meeting of January 19, Garshick had been a rather inactive partici- pant in the dissident movement although he had signed an application card for District 50 He was, however, one of those individuals of January 19 who had the temerity to bring forth the grievances of the drivers as requested by Sawyer Obviously the Respondent chose to discharge Garshick for this leadership of the employees as was further evidenced by MacOdrum's part- ing remark to Garshick at the discharge interview That Tuesday evening, January 23, when Brattin reported for work, he was sent by the dispatcher to see Frank Sawyer but met Francis Sawyer, Jr., on the way to his father's office. Upon being told that Sawyer, Sr , was busy, Brattin and Francis Sawyer, Jr., had a conversa- tion which began when Francis said, "Brattin, you double-crossed my father," and then inquired as to what Brattin sought to gain in the event the Respondent recognized "you." After a lengthy and amiable conversation with Francis, Burke walked in on his way to Frank Sawyer's office and the three men went in together. As they did, Frank Sawyer stated, "Brattin and Burke, I hate you. I hate unions, I broke them before, and I will break them isOn the question of credibility, the undersigned was impressed at the hearing by the almost universal exactitude of the language attributed to each of the committee and Garshick by the various Respondent witnesses It hardly seems plausible to the undersigned that each of the Respondent's witnesses could, or would, have remembered the exact same phrase by the identical speaker during the din of such a heated and lengthy session as was the meeting of January 19. CHECKER TAXI COMPANY 281 again. You double- crossed me You took my men out on strike You're fired as of this minute." 19 The third member of the committee , Bosworth, was sick on January 20 and, due to the strike of January 22, did not report again for work until January 24 , when MacOdrum gave him a white discharge slip and , when asked for the reason for the discharge , stated, "I think you know." Although Bosworth' s discharge was not finally accomplished until January 24, the Respondent's officers had agreed upon the discharge at the same time that they had agreed upon the other discharges here mentioned as shown by his dismissal slip which con- tained the notation " Mon."--obviously referring to Monday , January 22. According to Frank Sawyer , these 4 men were discharged because they "humiliated and insulted" him personally . MacOdrum rather expanded on this same idea when he testified that he considered it objectionable that the men should talk to a man of Sawyer ' s position the way they did. But it became clear from Sawyer ' s own testimony that the reason that he felt "insulted and humiliated " was the fact that every time he thought he had succeeded in getting the drivers to a state where they were about to abandon their strike and return to work, one of these 4 individuals would speak up with the result that the strikers would re- affirm their decision to remain on strike . No doubt it is an insulting and humiliating ex- perience for an employer to discover that his employees preferred to follow the leadership of their own duly chosen leaders rather than his own when a labor dispute has arisen but discharging employees for that cause is specifically prohibited by the Act , which guarantees to the employees the right to be represented by persons of their own choosing During that meeting Sawyer specifically told Brattin and Burke that he "would never forgive them" for what they had done that night so that it is clear who were the objects of Sawyer ' s indignation and what caused that indignation. While , as noted above, some of the language used during the meeting was no doubt not of the best , still it was not exceptional around the garage and would not have been cause for discharge except for the frustration Sawyer felt because of his inability to sway the men away from their own chosen leaders In situations such as here involved , an employer cannot demand the niceties of tea party manners. At best, this exception taken to the language used was merely a cover, up for the fact that Sawyer was discharging all three committee members because of their leadership of the employees in their concerted activities and because , in exercising that leadership, they had bested him in an argument. Garshick was included in the discharge , the undersigned is convinced , solely because he too assumed a leading role during the meeting of January 19 in opposing Sawyer's attempt to break the strike The undersigned is convinced and, therefore , finds that the Respondent discharged John A. Brattin, Howland E. Bosworth , William F. Burke, and Nathan Garshick on January 21 and 24, 1952, because of their leadership of the Respondent' s employees in their concerted activities and in order to discourage such concerted activities or membership in a labor organization in violation of Section 8 (a) (3) of the Act. 3. The discharges following the January 22 strike The discharge of Garshick on January 21 was little known among the employees and, therefore , caused little, if any, comment. However, when Brattin and Burke, two of the com- mittee, were discharged for their activities on the evening of January 21 and it became clear that the leaders of the concerted effort of the employees were to be disposed of, the matter became extremely serious to the men so far as they and their individual rights were con- cerned . So a meeting of the committee was called at UMW headquarters on the morning of January 22. There the discharge of the committee at the Respondent's plant was discussed and recognized as a definite threat to the right of the employees to engage in concerted activities It was considered of sufficient importance by the whole committee for it to call a strike against all the Boston and vicinity taxicab companies . Without such protest the employees felt that their concerted efforts would be completely nullified by the discharge i9Of this statement as found above , Sawyer denied the second and third sentences only Francis was not called as a witness. Sawyer also admitted that in June 1951 , and thereafter, he had informed the committee that he would be glad to assist them in getting rid of 496 and in helping them to set up their own club, or company union, but that the committee had refused his assistance in this endeavor . It was evident from these endeavors , as well as from comments made by Sawyer on the witness stand, that Sawyer did not like unions. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the entire committee composed of representatives from all the barns or garages of the various companies in the city and vicinity. So the full committee, composed of members from all the barns, decided to protest the discharges of the committee by the Respondent by striking all the barns in the city. Thus, the strike of January 22 was caused by the unfair labor practices of the Respondent in discharging the committee and Garshick On this occasion when word of the strike reached the Respondent's barn, or garage, most of the afternoon shift drivers were already on the street and, upon learning of the strike, returned with their cabs to the barn, putup the cabs as best theycould, and joined the strikers. Again only a few drivers failed to join the strike This time the drivers were informed by Respondent's officials, not once but many times apiece, that, if the driver put up his cab and joined the strike, the Respondent would consider him to have quit or voluntarily left his employment. The actions of the Respondent's officials in threatening the drivers with imme- diate discharge if they joined the strikers leaves no doubt that the Respondent intended to discharge these drivers who engaged in concerted activities by striking. As the drivers were engaged in a concerted protest against the Respondent's unfair labor practice in discharging the drivers' committee, it is clear that they were engaged in a protected con- certed activity and that the strike, therefore, was an unfair labor practice strike. Respondent, however, contended that these two strikes were in fact but a single strike brought for the sole purpose of securing the recognition of District 50 as the bargaining agent for the drivers. It based this contention upon the fact that on January 17, 1952, Dugan, representative of District 50, wrote and the following day telephoned the other taxicab companies in Boston and vicinity requesting that they recognize District 50 in lieu of Local 496 and upon receiving negative responses to his request, ended the telephone conversations with an enigmatic statement to the effect that that was "all" he wanted to know, that he would close up the shop. While recognition of District 50 may have been a very small, inci- dental part of the reason for the strike of January 19 at the Respondent's barn, it could have played no part at all in the strike of January 22 for the reason that that matter had been settled at the end of the previous strike- -there was to be an election. It was only natural, even as the Respondent had foreseen by retaining police protection after January 19, that the drivers would go out on strike to protest the discharge of their leaders for their activities in leading the drivers during that first strike Obviously, therefore, the strike of January 22 was called because of the discharge of the committee and Garshick Even assuming, contrary to the fact that the January 22 strike was caused by the demand for recognition of District 50, still as that created a labor dispute, 20 the strikers remained "employees" under Section 2 (3) of the Act and, as such, entitled to reinstatement upon re- quest until replaced. In this case there is no claim even that the striking drivers were replaced The strike of January 22 was abandoned by the drivers upon the suggestion of a UMW official who feared that the continuance of the strike would lead to bloodshed and violence The men thereupon voted to abandon the strike and the Respondent was notified that the men would return to work When Burke appeared at the Respondent's garage to so inform the Respondent, Frank Sawyer ordered him off the premises on the ground that he had been discharged previously, thus emphasizing the fact that Burke had been discharged for his leadership of the men in their concerted activities. When the men reported back for work at the conclusion of the second strike, they were met by MacOdrum with a list of the drivers together with the periods of their absences subsequent to January 15, 1952, thus covering the period of both strikes This list and the use made of it proved that the purpose thereof was to discharge those drivers who had been on strike on both occasions. While MacOdrum maintained that he merely asked the men sent to him what they "intended to do"--he had no reasonable explanation for the presence of the list--and abided by their own decision as to returning or not, the evidence fails to bear out this contention and proves that those individuals listed on Appendix A attached hereto called before MacOdrum were, with hardly a word, handed their discharge slips Respond- ent's attempted explanation of those discharged on January 24 just does not conform to the facts The Respondent selected and discharged the men listed in Appendix A on January 24 because they had twice engaged in concerted activities by striking on January 19 and again on January 22. It is clear that discharging employees for engaging in a protected concerted activity is a violation of Section 8 (a) (3) of the Act. 20 Ohio Ferro Alloys Corporation, 104 NLRB 542. CHECKER TAXI COMPANY 283 But the Respondent set forth certain special defenses in the case of certain of the indi- vidual dischargees which require a few words here Respondent contended that it discharged Joseph Solomon at this time because his hackney license had been suspended by the Boston Police Department on January 17, 1952, a fact of which Solomon had failed to notify the Respondent The fact of this matter was that, while Solomon's license was suspended , it was subsequently upon appeal ordered restored to Solomon The facts also show, contrary to the Respondent's contention, that Solomon did not drive after his suspension as he began, with the Respondent's consent, to work around the garage which is pretty strong evidence that the Respondent knew of the suspension as of the time thereof Suspension of a hackney license never had been cause for discharge prior to this occasion But Solomon had engaged in both strikes and, in fact, was the victim of the only violence of those 2 strikes when, on the night of January 22, he was, without provocation, set upon and severely injured by 2 "goons" well known to the Boston Police Department. While Solomon was arrested by the police at this time, apparently for having been the unsuspecting and injured victim of an unprovoked assault, he was subsequently acquitted by a jury after his 2 assailants pleaded guilty MacOdrum also intimated that the chief of the Hackney Bureau, one Captain Charles F. Eldridge of the Boston Police Department, had ordered MacOdrum not to reinstate Solomon as a cab driver--Solomon's suspension grew out of an altercation with a Boston policeman. While Captain Eldridge denied this claim on the stand, he admitted that he might have "suggested" that Solomon was psychologically not a good risk as a cab driver So there would appear to have been some semblance of fact in the MacOdrum testimony. Certainly after Solomon's suspension had been revoked and his license reissued to him, MacOdrum well knew that Captain Eldridge had no authority to try to prevent the employment of Solomon. Any such effort on the part of a police captain would have amounted to a "black list." In addition Captain Eldridge testified positively, contrary to the Respondent's witnesses, that he had telephoned the Respondent at the time of this suspension of Solomon 's license and notified the Respondent The undersigned, therefore, finds that Solomon was discharged because he participated in the concerted efforts of and with his fellow employees in violation of Section 8 (a) (3) of the Act. The undersigned further finds that the Respondent had knowl- edge of the suspension of Solomon's license and that he was not discharged on that account. The Respondent contended that Henry F. McCormick was discharged for having insulted a passenger in a cab driven by a nonstriker during the strike of January 22. This episode was an unhappy one in which McCormick, after addressing uncomplimentary language to the nonstriking driver of a Checker cab, then opened the rear door of the cab and verbally abused the passenger therein for using a "scab cab." Although feelings were running high on all sides at the time of this episode, the undersigned believes that McCormick went beyond the limits of persuasion in his comments to the passenger of the cab and finds that the Respondent would have been justified for discharging McCormick had it not subsequently on May 2, 1952, condoned that action on his part as will be more fully revealed herein- after As for driver Ralph T Powers, Respondent contended that it discharged this employee because he -physically assaulted John V. Jenkins, the then president of Local 496, on the evening of January 19, when Jenkins and 4 automobile loads of Teamsters' officials and attorneys drove into the Checker garage to confer with Sawyer regarding the strike. Jenkins was not called as a witness. There was no evidence adduced in this record that Powers hit Jenkins in fact, there is positive evidence in the record that Powers did not strike Jenkins even if he attempted to do so There is testimony from one Hyman Rudstein, a nonstriking Checker driver, who was 1 of the 25 drivers induced to drive on January 19 in order to "support his wife and family," that Powers upon seeing Jenkins step out of the automobile said, "There goes the son-of-a-bitch now," and rushed towards Jenkins until stopped by a policeman Rudstem testified that Powers then aimed a swing at him, Rudstein, but failed to land There is no explanation at all as to why Powers suddenly changed from allegedly assaulting Jenkins to striking at Rudstein In other respects Rudstein's testimony was at variance with that of other witnesses for the Respondent and for 496 He was an un- impressive witness whose testimony may well have been colored by his desire to support "his wife and family " The undersigned sees nothing in this occurrence, including the language which was not unusual at the garage,2i which would disqualify Powers from rein- statement. tiContrary to the argument made in the Respondent's brief, this finding is not intended as an insult to a fine body of men (the drivers) as implying that they used rougher language 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the cases of William H Brady, Calvin Pizzano, and George Morgan, the Respondent contended that these men were discharged for having called in "sick" on January 22 and January 21, respectively, and then were seen on the picket line on January 22 but there- after failed to report immediately at the conclusion of the second strike In the Brady case, the Respondent appears to be saying that the Respondent discharged him for telling an "untruth" about being too sick to work but still being seen on the picket line the same day. In all these instances the objection of the Respondent was to the fact that the men appeared on the picket line thus proving that he was engaged in concerted activities with his fellow employees As the Respondent was at this time having difficulty in maintaining a sufficient labor force, it is highly unlikely that it would fire a driver of some years standing for having told an "untruth " It has already been proved that the Respondent would fire a driver for engaging in concerted activities Pizzano was a rather special case as he had been employed by the Respondent for a number of years despite the fact that throughout this whole period he had been suffering from a chronic ailment which made his working highly irregular In fact the undersigned had to excuse Pizzano from the witness stand prior to the conclusion of his testimony for that very reason In Pizzano's case it is crystal clear that it was the fact that Pizzano was seen on the picket line and not his customary absence from work which caused the Respondent to dispense with his services The Respondent attempted in its brief to excuse the discharge of Donald McCarthy by Frank Sawyer for returning his cab on the evening of January 22, when the strike began and when Frank Sawyer and all the other officials of the Respondent informed each returning driver that if they put up their cabs that evening, they were "through" and would be con- sidered as having quit their employment The Respondent maintained that when McCarthy was interviewed by MacOdrum on January 25, and was asked "What do you want to do now'? " McCarthy's only answer was that he "had been fired by Sawyer " Thus the Respondent appears to argue that McCarthy was not refused reinstatement. This fails to take into account the fact that MacOdrum handed McCarthy a discharge slip at the end of the interview just as he did with the remainder of the drivers discharged at the same time. Without that white slip a driver could not have collected the pay then due him and would have remained an employee The undersigned finds no merit in this argument The Respondent maintained that William Furman reported that he was "fed up," was quitting, and was going to go "chicken plucking" both at the beginning of the January 22 strike and when he was interviewed by MacOdrum on January 25. If Furman made this statement, which he positively denied, it is more than passing strange that he should have reported at the garage at the conclusion of the strike ready to go to work as usual. Despite the absolute unanimity with which the three Respondent witnesses recalled Furman's alleged "chicken plucking" answer, the undersigned credits Furman's denial for he appeared to be as genuinely bewildered by that strange new occupation as was the undersigned In addition, the Respondent argued that as neither Furman nor McCarthy personally filed charges alleging theirs to be a discriminatory discharge, these issues are barred by the statutory period of 6 months. Such argument disregards the law as the courts have applied it. It is therefore without merit. Robert Newell, according to MacOdrum and other Respondent witnesses, told MacOdrum at the time of his interview with MacOdrum on January 25, that he was "retiring from the cab business " Newell denied having made the remarks as above and testified credibly' that when MacOdrum told him that he was sorry to have to discharge him, he (Newell) answered that MacOdrum should not feel too sorry for he "might retire from the cab business if he could find something else as good " The undersigned finds, in accordance with Newell's testimony, that he did not inform MacOdrum that he was retiring from the cab business. If Newell had been retiring from the cab business it is hardly probable that he would have reported for work ready to drive a cab as usual when the dispatcher sent him in to see MacOdrum. In its brief, the Respondent further noted that none of the individuals above named were "officials of the organizing committee nor unduly active in the strike . and hundreds of other employees who participated in the strike were allowed to return to their jobs" as compelling the conclusion that there was no "particular motive" for picking out these indi- viduals for discharge on January 25, other than the reasons the Respondent assigned above for their discharge This sockdolager ignores the fact the Respondent had previously dis- than any other group of men." Unlike the writer of that argument, the undersigned sees no sense in attempting to distort the facts of life to the extent that any group of men, whether engaged in a strike or not, is going to restrict itself to the language of a tea party. CHECKER TAXI COMPANY 285 charged the leading and most active representatives of the employees, the three committeemen and Garshick, so that in order to prove to the remaining employees that participation in con- certed activities was inimitable to the retention of their employment with the Respondent, the Respondent was of necessity reduced to discharging some of the secondary participants in the concerted activities. If the men listed in Appendix A had not participated in both strikes, the undersigned is convinced that none of them would have been discharged. In other words, the motivating cause for the discharge of the employees listed in Appendix A attached hereto was the fact that each of them engaged in concerted activities by partici- pating in the strikes. Discharging an employee for this reason is a violation of Section 8 (a) (3) of the Act and the undersigned so finds 4. The alleged offer of reinstatement of May 2 On May 2, 1952, the Respondent addressed the following letter to the discharged employees listed below: Dear Sir: You are hereby notified that you are offered reinstatement to your former position, if you accept the same on or before May 9, 1952; after which date we will replace your position with a new employee. Very truly yours, Checker Taxi Company In this connection it is interesting to dote that by 1 e t t e r dated May 6, 1952, Local 496 answered a prior inquiry by the Respondent as follows: In accordance with our telephone conversation I am hereby advising you based on information of the Union Treasurer and the books that the following men have auto- matically suspended their membership in Local 496 (AFL) by being 3 months or more delinquent in their dues: C. Pizzano W. M. Brady George Morgan John Harty H. McCormack W. Hefter F. D. Callahan R. Powers R. Newell T. Salashinsky H. Lewitus W. Kellems By an undated letter to Respondent the following men were said by Local 496 to be in the same delinquent status: James Leahy Healey Now(e) On May 7, 1952, the following letter was directed to the Respondent by the individuals listed below: Dear Sir: Your letter of the 2nd instant addressed to the undersigned has been duly received In your letter you offer us reinstatement to the former position that we held with your Company and you asked our acceptance on or before May 9, 1952. 337593 0 - 55 - 20 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In reply to your letter we accept the offer you have made and will report for work as directed on May, 1952. Very truly yours, /s/ James E. Leahy Peter Salashinsky Francis Callahan Robert M. Britian William H. Brady John A. Hardy Ralph T. Powers Walter F. Hefler Calvin Pizzano Robert Henry Clifford Newell Walter Kellems George E . Morgan, Jr. Healy A Nowe When the above- named individuals reported for work on May 9, as requested , they were sent to MacOdrum who told the men as they reported that "they would have to get straightened out with the Union" before they could work . A large percent of the men involved then went to the union office but were universally unable to locate any officer of the Union or clear up any delinquency which might then have existed When told of the unavailability of the Union, all MacOdrum would say was that the men would have to get cleared with 496 before they could go to work A few of these men made a second unsuccessful attempt to get clearance from 496 but were again unable to locate any officer or to accomplish their purpose . The im- possibility of securing clearance from 496 had been prophesied by some of these individuals during their interview with MacOdrum . It must have come as no surprise to the Respondent. Because of this additional condition to reinstatement , i e , union clearance , and because of the Respondent's knowledge of the alleged delinquency of the persons offered reinstatement plus the strange absence of responsible officials of 496 on May 9, the advertised day for re- instatement, and for several days thereafter , the undersigned cannot accept this as a bona fide offer of reinstatement to the men involved Admittedly the Respondent offered rein- statement to these men only in order to eliminate the possibility of a back-pay order for them As the men went to the offices of 496 for the purpose ofpaying their dues - -as the Respondent knew--it is obvious that the Respondent knew that their inability to obtain "good standing" in the Union was not due to their unwillingness to pay or tender the regular dues payments to the Union which , by statute , is the only basis on which the Respondent was entitled to terminate their employment . Indeed under the security clause of the contract, if interpreted so as to be legal , these men were entitled to a 30-day grace period before having to pay their dues to 496 Thus by this very maneuver the Respondent again violated proviso (B) of Section 8 (a) (3) because it had " reasonable grounds for believing that [union] membership was denied or terminated for reasons other than the failure of the employee to tender " the regular union dues thus depriving Respondent of the right to refuse the men reinstatement. It might be added parenthetically here that the notice of January 10 with its allusion to "dual unionism " could well have supplied the Respondent with the knowledge that the tender of dues would not have been sufficient to establish the men involved in "good standing" in 496. In addition it should be pointed out that this offer of reinstatement to Henry F. McCormack, alluded to above, must be considered as condonation of what otherwise would have been con- duct sufficiently detrimental to have warranted Respondent ' s action in refusing him em- ployment. However , the- Respondent by making this alleged offer of reinstatement to McCormack conclusively showed that the Respondent itself did not consider the actions of McCormack to be sufficient to deprive him of the employment status he had formally en- joyed . It is also interesting to note that a number of the men whom the Respondent discharged on January 24, allegedly for special reasons , were included in the men offered reinstatement at this time This offer would thus appear to condone any defections which the Respondent had noted in their cases. In the case of McCormack, the undersigned believes that , because of his illegal activities in regard to the passenger in a Checker cab, the policy of the Act will be better served if back pay as to McCormack begins as of May 2, 1952. CHECKER TAXI COMPANY 287 5. Further defenses raised by the Respondent a. Defense of fronting for noncomplying union The Respondent strongly argued in its brief that the Board should deny "jurisdiction to the petitioners on the ground that they are fronting for a non-complying union." The Re- spondent cited the setting up of an "Organizing Committee for District 50" in which Brattin, Bosworth, and Burke were appointed temporary officers, the signing of authorization cards for District 50 by all the petitioners here, the disaffiliation of the individuals from Local 496 and affiliation with District 50, and the financial and other assistance rendered by District 50 to this dissident majority group during the short period while District 50 was active in the case Respondent further made much of the fact that District 50 originally filed, and later withdrew, the unfair labor practice charges arising out of the discharge of Brattin, Bosworth, Burke, and Garshick before the Massachusetts Labor Relations Commission and the fact that Brattin thereafter had filed the original charge against the Respondent before the National Labor Relations Board which likewise was later withdrawn and replaced by charges filed by most of the individuals here concerned. This technical argument omits any reference to the fact that these charges seek in no way to secure any rights for or on behalf of District 50 The charges are strictly limited, as is the complaint, to an attempt to address the wrongs done to the rights of the men as individuals This argument is an attempt to penalize individuals by applying to them the disqualifications which Congress enacted to apply exclusively to labor organizations This contention further completely eliminates from any consideration the fact that the committee had constituted the leadership of the employees for a long period prior to the time when District 50 was asked to come into the picture to help and as well as long after District 50 had lost all interest in the plight of the individuals here involved. For the reasons more fully set forth by the undersigned and adopted by the Board in the recent case of Ohio Ferro Alloys Corporation, 104 NLRB 542, the undersigned rejects this argument as being wholly without merit 22 There is, under the recent Board Decision of Wood Parts, Inc., 101 NLRB 445,the case of William F. Burke which might qualify as a case of" fronting." It developed in the evidence that following Burke's discharge at a time when his physical condition prevented his working steadily, District 50 put him on its payroll as, so Burke testified, "a charitable measure" until he could work regularly again. Burke testified without contradiction that he was given no assignments by District 50 in return for this compensation As District 50 stepped out of the present situation almost immediately after the failure of the January 24 strike, it is clear that whatever remuneration Burke received was definitely not in connection with the present incident. Under the situation existing here, where Burke had been one of the leaders of the employees long before and long after the participation of District 50 therein, the undersigned is inclined to believe that District 50 did place Burke upon its payroll for a couple of months as a charitable measure and in order to assist him to support himself and his large family during the period when he was deprived of his employment with the Re- spondent by reason of the unfair labor practices of the Respondent. Under all these circum- stances the undersigned is not able to find that Burke is disqualified from using the facil- ities of the Board because of his alleged "fronting" for District 50. The undersigned, there- fore, finds that this defense raised by the Respondent is also without merit. b The defense of the "no-strike clause" In its brief, the Respondent also argued that the strike of January 19 and January 22 were illegal because the contract between the Respondent and Local 496 contained a "no-strike clause." The Respondent therefore, argued that, even though the union-security clause con- tained in the contract be held illegal, it was separable from the rest of the contract, thus leaving the no-strike clause as well as the remainder of the contract in full force and effect. As it has already been held that Local 496 and the Respondent by their posted notices had agreed upon an illegal enforcement of the union-security clause and that thereby the Re- 22 Respondent's counsel states: "There is a duty on the part of the Board to enforce the law as it was intended." As Congress by its phraseology obviously intended only labor organizations to be disqualified, this decision conforms to counsel's request even though not securing the results he had wished for. Counsel would extend congressional intent to absurd lengths for the benefit of his client. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent was illegally assisting 496 in violation of Section 8 (a) (2), this defense of sepa- rability hardly comes with good graces from the Respondent. It is now settled Board law that the signing of a labor contract by an employer does not give him the right to engage in unfair labor practices thereafter and to rely upon a "no-strike clause" contained in said contract as a defense.23 As the Respondent here was engaged in the illegal enforcement of its union-security clause, it would seem that Respondent was estopped from insisting that the employees live up to the remainder of that contract, including the no-strike clause IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent had engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act It having been found that the Respondent discriminated against John A. Brattin, Howland E. Bosworth, Nathan Garshick, William S. Burke, and the individuals listed in Appendix A attached hereto, by discharging them because of their concerted activities, the undersigned will, therefore, recommend that the Respondent offer to each of said employees immediate and full reinstatement 'to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges and that the Respondent make each of said employees whole for any loss of pay he may have suffered by reason of such discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the Respondent's discrimination as to him to the date of the offer of reinstatement less his net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 It having further been found that the Respondent illegally assisted Local 496 by its illegal enforcement of the union-security clause, it will be recommended that the Respondent cease and desist from such illegal enforcement. In view of the great amount of time which has elapsed since the attempted illegal enforcement of this union-security clause and in view of the fact that the contract has but a few months to run until its expiration date, the under- signed is not going to recommend that the whole contract in question be set aside as re- quired by the doctrine of the Resnick case.24 As the proper time for a new representation election is rapidly approaching, the undersigned feels that this departure from the general rule will more effectively effectuate the policies of the Act Upon the consideration of the record as a whole, the undersigned is convinced that the Re- spondent's conduct in discriminating against the above-named employees as it did together with its other unlawful activities indicates an attitude of opposition to the purposes of the Act generally In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, thereby minimizing industrial strife, which burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, the undersigned makes the following CONCLUSIONS OF LAW 1. District 50, United Mine Workers of America, and Local 496, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, A. F. L., are labor organ- izations within the meaning of Section 2 (5) of the Act 2 By discriminating in regard to the hire and tenure of employment of John A. Brattin, Howland E. Bosworth, Nathan Garshick, William S Burke, and those employees listed in 23So an employer cannot enforce one part of the contract in an illegal fashion and still demand strict adherence by the employees to another section of the same contract 2486 NLRB 38. CHECKER TAXI COMPANY 289 Appendix A, thereby encouraging membership in Local 496 and discouraging concerted ac- tivities among its employees , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act. 3. By enforcing the union-security clause of its contract with Local 496 in an illegal manner , the Respondent has engaged in and is engaging in. unfair labor practices within the meaning of Section 8 (a) (2) of the Act 4 By interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A William H. Brady Robert M. Brittan Francis P. Callahan William B. Furman John A. Harty Walter F. Hefter Walter Kellems James E. Leahy Bert Lewitus Henry F. McCormack George E. Morgan, Jr. Robert H. Newell Healy A. Nowe Calvin Pizzano Ralph T. Powers Peter Salashinsky Maurice A. Shapiro Josef Solomon Sidney A. Spilberg Donald McCarthy APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we here- by notify our employees that: WE WILL NOT in any manner interfere with , restrain , or coerce our employees in the exercise of their right to self- organization , to form labor organizations, to join or assist any labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as author- ized in Section 8 (a) (3) of the Act WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Howland E. Bosworth William H. Brady John A. Brattin Robert M. Britian William F. Burke Francis P. Callahan William B. Furman Nathan Garshick John A. Harty Walter F. Hefter Walter Kellems James E. Leahy Bert Lewitus Henry F. McCormack George E Morgan, Jr. Robert H. Newell Healy A i lowe Calvin Pizzano Ralph T. Powers Peter Salashinsky Maurice A. Shapiro Josef Solomon Sidney A. Spilberg Donald McCarthy 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT enforce the union- security clause in our present contract with Local 496, International Brotherhood of Teamsters , Chauffeurs, Warehousemen & Helpers of America , A. F. L. All our employees are free to become or remain members of any labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any labor organization. CHECKER TAXI COMPANY, Employer. Dated ................ By.............................................................................................. (Representative) (Title) This notice must' remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. HOUSTON TERMINAL WAREHOUSE & COLD STORAGE COM- PANY, Petitioner and GENERAL DRIVERS, WAREHOUSE- MEN & HELPERS, LOCAL NO. 968, AFL. Case No. 39-RM- 29. December 4, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John F. Burst, hearing officer . The hearing officer ' s rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. General Drivers, Warehousemen & Helpers, Local No. 968, AFL, is a labor organization claiming to represent employees of the Employer. 3. The alleged question concerning representation: At the hearing, the Employer-Petitioner stated that it did not question the majority status of the Union in a residual unit of refrigeration engineers and checkers, and agreed to bargain with the Union without an election, as the representa- tive of those employees whom the Board found to be nonsuper- visory. The Employer contends that only three refrigeration engineers may properly be included in the unit, and that the chief refrigeration engineer and all the checkers must be excluded as supervisors. The Union asserts that neither the checkers nor the chief engineer are supervisors. The Employer operates a warehouse for the storage of food products and other merchandise, including the cold storage of frozen and perishable goods. It receives and forwards ship- ments of merchandise by rail and truck; it employs approxi- mately 50 laborers in the movement and storing of the goods at the docks and around the warehouse. The laborers are 107 NLRB No. 83.